Films vs ISPs In India: John Doe Orders Could Be Back; No Safe Harbor?

Update: Abhijit Bera, on Twitter, says that no one cares about ISPs and they can be bypassed.

My take on this: Firstly, the ISPs dont deserve this. They’re not responsible for what users access and do, and my opinion is that they shouldn’t be held liable in court for this. Secondly, the court isn’t seeing them as dumb pipes, so this means that they might be forced to take preemptive action to prevent copyright infringement, which will lead to inordinate restriction of Internet usage by citizens.

Yesterday: The Madras High Court has dismissed the plea by Internet Service Providers (ISPs) to not hold them liable for piracy of content on the Internet, and as the Hindu points out, has placed the onus of prevention of copyright infringement on ISPs. Read the court orderhere. The original case was filed by R.K. Productions Private Limited and Creative Commercials Media and Entertainment Ltd, which led to mass blocking of websites in India.

Advertisement

The court has ruled that the submission made by ISPs that they cannot prevent “future wrongs” of piracy of content is not correct, and their apprehensions about the inability to “enforce or implement the order of this court are unfounded. The court found the contention that websites host both infringing as well as non infringing content “unmeritorious”. The court said that there is no necessity to entertain the applications to reject the plaints even before a trial. “The respondents/defendants are undoubtedly internet service providers (ISPs) and therefore, they have an obligation not to allow such infringement to take place by using their services.”

However, it did say that the initial ex-parte order was an ‘omnibus injunction order’, as per which entire websites were blocked, but following that, a correction order looked at specifics of URLs. The court has said that “it is open to the applicants/plaintiffs to give the particulars of URL, where the infringing movie is kept and on such receipt of particulars of URL from the plaintiffs / applicants, the respondents / defendants will have to take necessary steps to block such URLs.”

What This Means

What this appears to suggest is that the court has held that ISPs can be held responsible for copyright infringement, and they have an obligation to not allow infringement. This means that there is possibly no safe harbor for ISPs in India, and they can be held liable for piracy by their subscribers. In addition, the statement that it is open to plaintiffs (copyright owners) giving specific URLs (for blocking) appears to suggest that it isn’t a necessity, and omnibus orders are also fine. If this is the case, then John Doe orders will make a comeback in India. Remember that this is a follow up to the move by the ISPs to seek specificity in URL blocks, back in June 2012.

The case might go to trial now, and the outcome could determine intermediary liability for all intermediaries – Cybercafes, website hosts, ISPs, among others. This appears to be precedence setting (but do check with a lawyer for a considered opinion)

What The ISPs had argued

In its petition to the court, BSNL had argued that as an ISP, the license mandates that it provide unrestricted service, and not “invade the privacy of the contents / usage by the consumers unless and until directed by CERT-In, DIT, DOT and TRAI.” It said that it has no control or powers of supervision over the content on the web.

Bharti Airtel has made the same argument, and in addition, said the following:

– For issuance of John Doe order under the Indian law, there should be an actionable wrong already committed or done and only the identity of the wrong doer would be undetermined.
– Every website could consist of millions of URLs, containing large amount of data and contend which may or may not be objectionable. ISPs cannot check each and every URL being accessed by every customer and each and every website is accessed by every customer, nor can they exercise any editorial control over any of the websites. The ISP has no concern or control with the content of any website. The general allegation of video piracy cannot be used as a grant to file the present suit. Under the garb of playing illegal content, it cannot be said that the ISPs are under the obligation to block all websites, which violates the constitutional right of ISPs whose obligation arise only under the Information Technology Act, 2000. Though the plaintiff impleaded 38 ISPs, they have not impleaded a single website which has infringed their copyright. An ISP is only obliged to block access to a specific URL.

How the plaintiffs responded

A counter affidavit filed by the plaintiff said that ISPs are functioning as vessels for others to use their services to infringe third party works, which is why they were arraigned as parties. “The ISPs contribute for the infringement to take place through their services and also gain monetarily through such actions. Therefore the liability of ISPs are identical to the actual persons involved in the acts of infringement.” In addition, the plaintiff pointed out that without ISPs, no person could upload pirated content. In addition, the ISPs have the ability to block specific content, under the IT Act, and “they should ensure that there are no illegal or immoral contents made available for access to general public.” The plaintiff cannot control the flood, so it is trying to control the floodgates.